JADE ELECTRONICS CO LTD v. CHINA SILVER DRAGON GROUP LTD

HCCW 283/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) NO. 283 OF 2003

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J U D G M E N T

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1. There are listed before me two winding-up petitions. They were ordered to be heard together on 29 August 2003. HCCW No. 284 of 2003 relates to Cedar Base Electronic Limited ("Electronic"). On 19 January 2004, Electronic was ordered to be wound up by the court in HCCW No. 1164 of 2003, on the petition of another creditor. I therefore make an order to dismiss the petition in HCCW No. 284 of 2003. I will deal with the costs for this petition at the end of the judgment.

2. I turn to the other petition before me, this is HCCW No. 283 of 2003. This relates to the parent company of Electronic, formerly known as Cedar Base Electronic (Group) Limited and now known as China Silver Dragon Group Limited ("the Company"). Three creditors have given notice of intention to appear and to support this petition. They are Dongguan Yeehing Chemicals Limited ("Yeehing"), RCL Semiconductors Limited ("RCL") and Messrs Simmons and Simmons. Three other creditors have given notice of intention to appear and to oppose the petition and they are Duan Chuan Liang (the present chairman of the Company and also a contributory), Tam Chun Yip and CSI Investment Management Limited.

3. The principal matter in contention is whether there is a bona fide dispute of the debt in the petition on substantial grounds.

The background

4. I will first give the background matters leading to the presentation of the petition.

5. The Company was incorporated in the Cayman Islands on 8 September 1999 with its principal place of business in Hong Kong. It is registered under Part XI of the Companies Ordinance, Cap. 32. The shares of the Company are listed on the Hong Kong Stock Exchange. By a resolution on 9 June 2003, the name of the Company was changed to its present name. On 16 July 2003, the domicile of the Company was changed to Bermuda. There was also around that time a reduction of capital of the Company. The Company and its subsidiaries have been engaged in the manufacture and sale of electronic products, mainly calculators. The principal activity of the Company is investment holding.

6. The petition for winding up was presented by Dah Sing Bank Limited on 7 March 2003. On 19 May 2003, as the Company had reached a settlement with the bank, leave was given to another creditor, Jade Electronics Company Limited ("Jade Electronics" or "the petitioner") to issue a summons for substitution as the petitioner and to file evidence in support. On 28 July 2003, as there was no opposition from the Company to the application for substitution, Jade Electronics was ordered to be substituted as the petitioner and consequential directions were given for the amendment of the petition. As there was indication by the petitioner's counsel at the time that he would wish to cross-examine some of the deponents and it was proposed that the cross-examination should be confined to certain matters, I directed the petition to be adjourned to a further directions hearing on 29 August 2003 and that a list of issues should be filed to give the court a clear idea what would be the issue or issues for which cross-examination should be permitted. However, at the hearing on 29 August 2003, the petitioner's counsel changed his stance and stated that he would not cross-examine any of the deponents. Hence, I directed that no cross-examination of any of the deponents would be allowed at the hearing of the petition.

7. The debt in the re-amended petition is in the sum of HK$2,579,243.83. It is the balance of the price of goods sold and delivered by the petitioner to Electronic payable under a settlement agreement executed between Electronic and the petitioner on 22 November 2002, being HK$2,802,068.64 less a partial payment of HK$222,824.80 received on 20 January 2003. It is the petitioner's case that the debt owed by Electronic is guaranteed by a corporate guarantee dated 22 November 2002 executed by the Company under seal in favour of the petitioner.

8. Although some evidence was filed by the Company and by Electronic in HCCW No. 284 of 2003 disputing the amount of the debt owed by Electronic mainly on the basis of defective quality of the goods supplied, there is no dispute that the goods had been sold and delivered by the petitioner to Electronic. It is also clear that any cross claim in respect of the alleged defective goods is well below the amount of the petitioning debt, so the dispute on the amount of the debt owed to the petitioner can be disregarded for present purpose.

9. The main issue in dispute is the alleged validity of the guarantee. The Company's contention is that the corporate guarantee was delivered in escrow and was to be held by one Chan Hak Shing of Kingchamp Industrial Limited ("Kingchamp") and not to be released to the petitioner unless and until Tong Yiu Lun, who was then the chairman and executive director of the Company, should decide to stay in the Mainland for good and not to return to Hong Kong. This verbal agreement for delivery of the guarantee in escrow is denied by the petitioner, and evidence on this issue has been given by a total of 9 witnesses on affidavit, 4 for the petitioner (Lau Wai Man Ray, Leung Suet Hing, Fok Wai Ki and Li Shao Wu) and 5 for the Company (Mr Tong, Liao Cheung Tin Stephen, Chan Hak Shing, Or Shui Bun Chris and Lo Ming Heung).

The law

10. Mr Sussex SC, who appeared for the petitioner, submitted whilst it is clear that the court does not conduct a trial on affidavit, the court is entitled to approach the disputed facts in much the same way as it does when faced with an application for summary judgment in a writ action. In particular, the court should look at the bona fides of the defence to see if it is obviously a "put-up job". He has referred me to the decision of Recorder Kwok, SC in Dongguan Hewant Rubber Plastic Manufacturing Company Limited v. J & M Eva World Limited, HCCW No. 830 of 2002, 21 November 2002 on the approach of the court in deciding if a bona fide dispute of the petitioning debt is raised on substantial grounds. There is in that decision a comprehensive summary of the law giving the relevant extracts in a number of authorities.

11. Mr Chua SC referred me to other decisions dealing with the question if a bona fide dispute is made out on substantial grounds. The most notable one is the decision of the Court of Appeal in Re S Zhong Shan International Investments Company Limited [1990] 1 HKC 90.

12. It is a matter of fact and degree in each instance if the extent of scepticism regarding the company's evidence in opposition is such that the court can say with some confidence there is no bona fide dispute as to the company's debt to the petitioner. I note for instance that in Re S Zhong Shan International although the Court of Appeal considered the judge had gone too far in coming to the view that the company's evidence disputing indebtedness to the petitioner was to be rejected as inherently incredible without being tested by cross-examination, the Court of Appeal did not entertain any doubt as to the lack of bona fides of the company's generalized assertions with regard to the debt owed to the substituted petitioner and found that the evidence bore the hallmarks of evasion and mendacity and a winding-up order was made on the petition of the substituted petitioner.

13. Before I turn to the evidence on the factual issue in dispute, one matter may be disposed of first, and that relates to the admissibility of oral evidence to establish that the instrument was delivered as an escrow. In his skeleton submission, Mr Sussex made the point that oral evidence is not admissible, invoking the rule that oral evidence may not be admitted to contradict, vary, add to or subtract from a contract. I am satisfied from the authorities cited by Mr Chua that oral evidence is admissible to show the character in which and the terms on which the instrument was delivered, indeed the court may even infer from surrounding circumstances prior to or simultaneous with (but not subsequent to) the delivery, the intention of the parties that the instrument is not to take effect as a deed until a certain condition should be satisfied and that the instrument is to operate as an escrow (Halsbury's Laws of England Vol. 13, paragraph 36; Chitty on Contracts, 28th edition, Vol. 1, para. 1-049; London Freehold and Leasehold Property Company v. Baron Suffield [1897] 2 Ch 608).

Evidence of the Company

14. The evidence of the Company may be summarized as follows.

15. In about November 2002, Electronic was indebted to 6 main suppliers in the total amount of about HK$11 million. These suppliers were the petitioner, Smartech Display Limited ("Smartech"), Asia Top Electronics Limited ("Asia Top"), Yeehing, Kingchamp and RCL. Mr Tong and Stephen Liao, then the General Manager of the Company, called a meeting with the 6 creditors on 11 November 2002 and put forward to them a repayment proposal. It was not accepted. Subsequent meetings were held with the creditors.

16. At a meeting on 19 November 2002, Mr Tong informed these creditors he was under "tremendous pressure" and "might disappear from Hong Kong one day" if he could not stand the pressure any more. He assured the creditors he would try his best to solve the financial problems of the Company and its subsidiaries and he would even repay them from his personal resources even though it was a moral and not legal obligation. With that assurance, all 6 creditors agreed to enter into separate settlement agreements with Electronic in respect of the debts owed to each of them. The agreements provided for payment of the existing debts by instalments and for continuation of supply of goods to Electronic on certain terms. The creditors expressed concern that in the event Mr Tong should leave Hong Kong for good and not return, his promise to repay out of his own funds if there should be default by Electronic would be of no use to them. To give additional comfort to the creditors, Mr Tong told them the Company would execute a guarantee in favour of each of them. However, these guarantees would be held by Mr Chan, the Sales Manager of Kingchamp, as a middleman and not be released to any of the creditors unless and until Mr Tong should decide to stay in the Mainland for good. This was to avoid some creditors claiming that the guarantees would be effective even though Mr Tong had not left Hong Kong for good. All 6 creditors accepted this arrangement. Mr Tong said the creditors were willing to accept this because they had been "good business partners" of the Company and its subsidiaries for many years and that the creditors "had a lot of faith" in him personally. Mr Chan said the creditors all had a "very high esteem and trust" for Mr Tong whom they knew to be an "honest and reliable person" and Mr Chan was chosen as the middleman to hold the guarantees because he was trusted by every one.

17. Mr Or, the Managing Director of Smartech, instructed solicitors to prepare separate settlement agreements and corporate guarantees for each of the 6 creditors. However, the oral agreement that the guarantee was to operate as an escrow was not recorded in writing. Nor did it appear that the solicitor was informed that the corporate guarantee was to operate in escrow only, save that instructions were given to him that the originals of the guarantees were not to be delivered to the other creditors but they were all to be given to Mr Chan of Kingchamp.

18. On or about 22 November 2002, Mr Liao executed the separate settlement agreements and the corporate guarantees on behalf of Electronic and the Company in the presence of the solicitor. The originals of the guarantees were all held by Mr Chan and kept by him until January 2003.

19. Electronic was not able to pay the first instalment to the creditors in December 2002. A meeting with the creditors was called on 13 January 2003, during which Mr Tong, on behalf of Electronic, agreed to pay HK$880,000.00 to the creditors and this sum was later paid and divided among them in the proportions as agreed.

20. According to Mr Tong, in a subsequent meeting with the creditors at the end of January 2003, he discussed a new repayment proposal but no agreement was reached, and on the next day, he was informed by Mr Chan that representatives of the creditors had attended the office of Kingchamp and demanded the release of the guarantees to them.

21. According to Mr Chan, some time after the meeting on 13 January 2003 and on 16 January 2003, he was informed by a director of Kingchamp, Aldous Ng, that various representatives of the creditors had attended the office of Kingchamp and strongly demanded to take back the guarantees executed in favour of each of them. Mr Ng therefore released the guarantees to the other 5 creditors. Mr Tong was informed by Mr Chan about this. Mr Tong's reaction was that this was a "scandalous act" and he was "completely shocked", but he did not believe at the time that the other creditors "would be so dishonest" as to try to enforce the guarantees even though he would still be in Hong Kong.

22. The Company's case is that the guarantee was obtained and enforced by the petitioner in breach of the oral agreement that the guarantee was to operate in escrow, as Mr Tong has not left for the Mainland for good.

23. Mr Tong's evidence on affirmation, as mentioned earlier, was supported by the affirmations given by Mr Chan, Mr Or, Mr Liao and Lo Ming Heung of Asia Top, the last three deponents merely made affirmations referring to the affirmations of Mr Tong and Mr Chan and adopting them.

Petitioner's evidence

24. The petitioner's Managing Director, Ray Lau, and the petitioner's witnesses, Fok Wai Ki and Li Shao Wu of RCL, Leung Suet Hing of Yeehing, denied that there was any oral agreement the guarantees were to operate only in escrow. They stated that the last meeting with Mr Tong on the proposals for repayment was on 16 November 2002. Mr Lau said he had earlier requested Mr Tong to provide a personal guarantee, but this was rejected, and it was only on 16 November 2002 that all the parties compromised and agreed to the provision of a corporate guarantee by the Company. It was on that basis that the creditors agreed to enter into separate settlement agreements with Electronic. At no point did Mr Tong raise during the negotiations that the delivery of the guarantee was subject to any condition.

25. As to why the guarantees were given to one of the creditors, Mr Lau stated that it was decided on 16 November 2002 that Smartech being the major creditor was to act as the coordinator, and each of the creditors would send relevant information to Smartech and Smartech was to give instructions to solicitors on behalf of all the creditors for the relevant documents to be prepared. It was further decided that after the execution of the documents, the originals of both the settlement agreement and the guarantee were to be kept by Mr Or of Smartech so that if Electronic should be in default, Mr Or could immediately instruct the same solicitors to commence legal proceedings for recovery for all the creditors. Hence, Mr Lau only received the copies of the settlement agreement and guarantee from the solicitors after the execution.

26. After Electronic had defaulted in payment, a meeting of the creditors was held on 8 January 2003. Mr Or of Smartech was reluctant to take proceedings against Electronic and the Company. Instead, he arranged for a meeting of the creditors with Mr Tong on 13 January 2003. Mr Lau said he had suspicions if Mr Or might have some private arrangement with Mr Tong as the sum of HK$880,000.00 to be provided by Mr Tong in part payment of the debt to the creditors was to be paid into an account of Smartech's subsidiary and the latter would draw a cheque to each of the creditors. To protect the petitioner's interest, Mr Lau asked for the originals of the settlement agreement and the guarantee relating to the petitioner. Some of the other creditors followed suit and made the same request for their settlement agreements and guarantees. It was then that Mr Or told them that the original documents were sent by the solicitors to Mr Chan by mistake.

27. On 14 January 2003, Mr Lau sent his messenger to the office of Kingchamp and took back the originals of the settlement agreement and guarantee. He said that although he had known most of the other creditors for years as he had been working in the industry for over 20 years, it was not a question of trust but only a commercial decision to nominate Mr Or to keep the settlement agreement and the guarantee.

28. The settlement agreement and the guarantee relating to RCL were returned to it on 15 January 2003 through the courier service arranged by Kingchamp. As for Yeehing, its representative also requested the return of its settlement agreement and guarantee on 13 January 2003 and was told by Mr Chan to contact one Miss Tang of the Accounts Department of Kingchamp to arrange for the collection of the same. On 15 January 2003, the settlement agreement and guarantee in respect of Yeehing were collected by courier service and a receipt issued by the courier was produced.

If there was a bona fide dispute of the debt on substantial grounds

29. I bear in mind that I am not to conduct a trial on affidavit when there are factual disputes, but this is not to say that in considering the bona fides of the grounds on which the debt is disputed, the court should not look at the evidence on affidavit with a critical eye, against the documentary evidence, the evidence not in dispute, or facts established by reliable independent evidence.

30. Mr Sussex submitted with some force that the allegation of an escrow agreement is a cock and bull story. He referred to the first response by the Company in May 2003 to the demand for the debt in the petition made by the solicitors for the petitioner on 6 May 2003. There was a letter by the Company's solicitors dated 17 May 2003 enclosing a letter in Chinese by Mr Tong to the Company dated 15 May 2003. No translation of the Chinese letter was provided. In that letter, Mr Tong stated that under the coercion of several suppliers, including Mr Lau of the petitioner, on 22 November 2002, he gave instructions to Mr Liao that the latter should execute on his own a guarantee in the name of the Company to guarantee the debts due to the creditors. Mr Tong further stated that he did not do so voluntarily and the guarantee was invalid and void and that he would agree to accept all legal responsibility. In the solicitors' letter, they stated that they were instructed that the guarantee was "signed without the authority of the Board of [the Company] and therefore is invalid" as Mr Tong "gave his instructions to Mr Liao to sign the Guarantee not under his free will".

31. Mr Sussex made a number of points about these two documents.

32. Firstly, there is a glaring omission here in that nothing was said about the allegation that the guarantee was executed in escrow. It is particularly surprising in view of the very strong reaction of Mr Tong deposed to in his affirmation that he was "completely shocked' about the "scandalous act" when some of the creditors strongly demanded for the release of their guarantees in January 2003 and he had not thought at that time they "would be so dishonest" as to seek to enforce the guarantees in breach of the escrow arrangement. The letter of the Company's solicitors and Mr Tong's Chinese letter were exhibited to the first affirmation of Mr Lau filed on 24 May 2004. Mr Tong did not make any comment about them when he made his affirmation on 17 June 2003.

33. Secondly, the allegation in Mr Tong's letter that he gave instructions to Mr Liao to execute the guarantee for the Company on his own and the allegation in the solicitors' letter that the guarantee was signed without the authority of the board of the Company are shown to be untrue. The petitioner produced a letter of undertaking to the 6 creditors dated 20 November signed by Mr Liao by which Electronic undertook to deliver to each of the creditors certified copies of the minutes of the board meeting of Electronic and of the board meeting of the Company in the forms enclosed. The 2 board minutes provided were signed by Mr Tong and another director. In the board minutes of the Company, the 6 settlement agreements and the 6 guarantees were tabled and it was resolved that the guarantees were approved and Mr Liao authorised to execute the guarantees as the General Manager. The board minutes were exhibited to the first affirmation of Mr Lau in May 2003, the allegation that the guarantee was executed without the authority of the board of the Company was not made in Mr Tong's affirmation in June 2003.

34. Thirdly, and this is not a point made by Mr Sussex, there is no mention in Mr Tong's affirmation of any coercion, threat or intimidation by any of the creditors causing him to agree to provide a corporate guarantee or that he was not acting voluntarily. On the contrary, in Mr Tong's affirmation, it would appear that it was he who took the initiative of proposing to the creditors that a corporate guarantee was to be provided to them on condition that they would not enforce the guarantee unless and until he was to leave Hong Kong for good.

35. Further points were made by Mr Sussex casting doubt on the veracity of the allegations made in the Company's evidence.

36. There was not a word about the escrow arrangement in any contemporaneous document. This is astonishing considering that solicitors were engaged to prepare legal documents for execution. It is also surprising that in the board minutes of Electronic and the Company, there was no record of any escrow arrangement when the resolution was passed approving the 6 guarantees which contained no suspensive provision and authorising Mr Liao to execute the guarantees.

37. The condition suspending the operation of the guarantees would depend on the intention of Mr Tong whether he would leave Hong Kong for good. This would be difficult for the creditors to prove and it does not make commercial sense.

38. Mr Chua submitted there was no delay in raising the defence of an escrow agreement, the demand was made on the guarantee in May 2003 and the defence was raised in Mr Tong's affirmation in June 2003. There is no requirement that a company should raise all its grounds of defence in its first response to a demand for a debt. This is not how I see it. It is not a question of not raising a particular defence at the first opportunity. Here, the initial lines of defence taken by the Company are shown to be untrue or contradicted by the allegations subsequently made by the Company. This is highly material in assessing whether the degree of scepticism of the defence is such that the court may safely conclude it is incredible without the test of cross-examination.

39. Mr Chua referred me to other matters as tending to provide support to the Company's allegations.

40. Firstly, a number of creditors, from Kingchamp, Smartech and Asia Top, have come forward to support Mr Tong's version. There is no allegation these creditors have conspired with Mr Tong to concoct an untrue story. The mere fact that Mr Tong's evidence may be unsatisfactory does not mean he should be disbelieved without cross-examination, particularly as others have also confirmed the version given by him. It seems to me it is a question of degree in each case. The petitioner does not need to go so far as to establish there was a conspiracy of the Company with some of the creditors. Mr Tong's evidence is clearly material to the case advanced by the Company, if his evidence is such that there are very grave doubts about his credibility, the situation cannot be salvaged by other witnesses repeating or confirming his evidence.

41. Secondly, Mr Chua pointed to the fact that the originals of the guarantees were not released to the creditors but were kept by one of them for two months. This does not seem to me to advance the Company's case further. At most, it is a neutral point. I note that there is no dispute that the originals of the settlement agreements were also kept by Mr Chan, even though the settlement agreements were not subject to any suspensive condition.

42. Thirdly, Mr Chua pointed out there is dispute as to how and why the guarantees were returned to the creditors. If forceful demands were made for the return of guarantees, this would tend to support the case of an escrow arrangement. However, it is not in dispute that those creditors who confirmed Mr Tong's version of an escrow arrangement, Smartech and Asia Top, also got back their guarantees from Kingchamp, when the release to them would have been in breach of the escrow arrangement. I do not think the dispute on this issue is such that it would make a significant difference to my assessment of the bona fides of the central defence raised by the Company.

43. Considering the evidence as a whole, I am firmly of the view that the allegation of an escrow arrangement is simply incredible, even without putting it to the test of cross-examination.

44. I rule against the Company it has raised a bona fide defence on substantial grounds. I find that the petitioner does have locus to present a creditor's petition.

If the Company is unable to pay its debts

45. The petitioner relies on section 327(4)(a) of Cap. 32 by which a company is deemed unable to pay its debts if a demand for a debt payable is served on the company and not paid within 3 weeks. If a debt not substantially disputed is unpaid, the court may infer that the company is insolvent. (An Feng International Trading Limited v. Honour Link International Development Limited [1999] 3 HKC 116 at 123D to E)

46. I have given leave to the Company to rely on a further affirmation of Mr Duan, filed without leave on 23 March 2004, exhibiting the latest financial statements of the Company and its subsidiaries which were prepared on a consolidated basis. No evidence has been adduced of the accounts of the Company.

47. On a group level, looking at the audited accounts for the year ended March 2003, the group has a net loss from ordinary activities attributed to shareholders of HK$263 million and net current liabilities of HK$56 million. The auditors have made a disclaimer of opinion in their report because of the significance of possible effects of the limited evidence provided to them and the fundamental uncertainty relating to the going concern basis of the group. They stated that they are unable to determine if proper books of accounts have been kept.

48. According to the interim report, again on a group level, for the 6-month period ended September 2003, the unaudited consolidated accounts showed net current liabilities of HK$32.7 million.

49. I find it established on the available evidence that the Company is unable to pay its debts as they fall due.

Orders

50. At the eleventh hour and only after the completion of closing submissions, Mr Chua indicated to the court that he has instructions to seek a stay or adjournment of the winding-up proceedings, alternatively the stay of the winding-up order pending appeal if a winding-up order is made. He put forward these proposals to the court. It was submitted that notwithstanding the judgment given above it does not follow from the consolidated accounts of the group that the Company is unable to pay its debts. A winding-up order is a last resort. The court should give the Company a further opportunity to file evidence within 10 days hereof to satisfy the court that the Company is not insolvent. The petition can then be restored after the filing of evidence and the matter could be argued whether it is established that the Company should be wound up on the basis that it is unable to pay its debts.

51. I see no reason why an adjournment should be granted to the Company to put in such further evidence. The petition was presented in March 2003. Jade Electronics was ordered to be substituted in July 2003. It is clear from the list of issues filed in August 2003 that the solvency of the Company is a matter in issue. Between August last year to the hearing in March 2004, the Company has had plenty of opportunity to put in such evidence as it sees fit regarding its financial position. Indeed a late affirmation was put in by Mr Duan two days before the hearing, and I have allowed the Company to rely on this.

52. Having failed on the issues and after judgment has been delivered, I see no justification to grant indulgence to the Company to put in yet further evidence. I therefore refuse the application to stay or adjourn the winding-up petition. I make a winding-up order against the Company. The petitioner in HCCW No. 283 of 2003 is to have its costs paid out of the Company's assets.

53. As for the application by Mr Chua to seek a stay of the winding-up order pending appeal on the basis that the Company is to paid into court within 7 days, a sum of about HK$3.9 million covering the debts of Jade Electronics, RCL and Yeehing until the determination of the appeal, I also refuse this application. There are established authorities that it is not the practice of the court to stay a winding-up order pending appeal. I am not satisfied in this situation there are any exceptional circumstances to depart from this practice.

54. As for the costs of the petitioner in HCCW No. 284 of 2003, I order that the costs should be paid out of the assets of Electronic as a liquidation expense.

55. I understand that the petition presented by another creditor in HCCW No. 1164 of 2003 was on 21 October 2003 and that was of course after the presentation of the petition in HCCW No. 284 of 2003 and after Jade Electronics was ordered to be substituted as petitioner in July 2003.

56. The general rule is that a second petitioner who presents a petition knowing that a petition has already been presented will have to pay the costs of the petition.

57. It is not entirely clear to me what order of costs was made as regards the petitioner in the subsequent petition, but there is certainly no basis to deprive Jade Electronics of its costs in the petition out of the assets of the company.